US Legislative Immigration Update August 31, 2009

Right Side News Reports from the Federation for American Immigration Reform in this August 31, 2009 Legislative Weekly…

Congressional Research Agency Confirms Illegal Aliens Will Get Health Benefits Under House Bill

Federal Court Upholds E-Verify Federal Contractor Rule

Illegal Alien Faces Death Penalty for 2008 Murder of High School Football Star

Congressional Research Agency Confirms Illegal Aliens Will Get Health Benefits Under House Bill

Last Tuesday, the Congressional Research Service (CRS), which is the non-partisan “research arm” of the United States Congress, issued a report that concludes that illegal aliens will be able to receive benefits under the House health care bill (H.R. 3200) through two major loopholes. (See CRS Report and FAIR Press Release, August 26, 2009).

According to its own website, CRS is a legislative branch agency that provides Congress with “policy and legal analysis” that is authoritative, objective and accurate. (CRS website). The latest CRS report validates what FAIR has been saying for the past month and a half – that illegal aliens will be able to receive taxpayer-funded health benefits under the House health care bill. (See FAIR’s Legislative Updates, July 20, 2009; July 27, 2009 and August 3, 2009).

The House bill creates an “exchange” and “all individuals,” which would include illegal aliens, are eligible to participate in the exchange. Anyone who participates in the exchange, and does not otherwise have health insurance, can either enroll in the public option plan created by the House bill or enroll in a private insurance plan. Accordingly, the first loophole that provides illegal aliens with health insurance is the ability for illegal aliens to freely enroll in the taxpayer-subsidized public option. According to CRS, “H.R. 3200 does not contain any restrictions on non-citizens – whether legally or illegally present, or in the United States temporarily or permanently – from participating in the Exchange.” (CRS Report). Accordingly, illegal aliens can enroll in the public option, courtesy of the American taxpayers, to meet their health insurance needs. (See CNN.com, August 2009).

The second major loophole is the failure to require any meaningful verification procedure for taxpayer-subsidized insurance credits. Under the House bill, individuals who buy private insurance through the Exchange may receive an affordability credit to offset the cost of insurance. This credit is ostensibly limited to individuals lawfully present in the U.S., but CRS (like FAIR) notes the complete absence of any provision in the House bill that requires verification of eligibility for the affordability credits. Without such a mechanism, there is nothing in the bill that will prevent illegal aliens from receiving this taxpayer subsidy to buy private health insurance.

These conclusions by CRS should eliminate any remaining doubt about whether illegal aliens will receive health benefits under the bill. As a result of this report, President Obama can no longer characterize the concerns about the illegal alien health care loophole under the bill as “misinformation.” (See FAIR’s Legislative Update, August 24, 2009 and FAIR’s Health Care Podcast, August 24, 2009). In addition, Members of Congress can no longer claim the bill prevents coverage for illegal aliens, and the media can no longer suggest this concern is a “myth.” (See FAIR’s House bill summary and Townhall.com, August 27, 2009).

Federal Court Upholds E-Verify Federal Contractor Rule

The amnesty lobby suffered a significant setback last week as a federal court upheld a regulation that will require most federal contractors to use E-Verify – the online, electronically operated employment verification system that allows employers to quickly and easily check the work authorization status of their new hires. (The New York Times, August 27, 2009).

The ruling came more than eight months after a coalition of special interest groups – including the U.S. Chamber of Commerce; Associated Builders and Contractors, Inc.; the Society for Human Resource Management; the American Council on International Personnel; and the HR Policy Association – sued to block the rule from taking effect on its original targeted implementation date of January 15, 2009. (See FAIR’s Legislative Update, January 5, 2009).

The push to require federal contractors to use E-Verify has had a long history. On June 6, 2008, then-President George W. Bush signed Executive Order (EO) 13,456, which amended EO 12,989 to require federal contractors to use an electronic employment eligibility verification system to verify the work authorization status of their employees. EO 13,456 also required the Secretary of the Department of Homeland Security (DHS) to choose the verification system to be used. (EO 13,456, June 9, 2008). On June 9, 2008, former DHS Secretary Michael Chertoff designated E-Verify as the system to be used by federal contractors under the EO. (DHS Press Release, June 9, 2008). The Final Rule implementing President Bush’s EO was issued in mid-November 2008. (Final Rule, November 14, 2008).

On December 23, 2008, a coalition of special interests filed a complaint in the U.S. District Court for the Southern District of Maryland alleging that the Final Rule was unlawful because it violated the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). The plaintiffs argued that Secretary Chertoff had violated Section 402(a) of IIRIRA, which states that “the Secretary of Homeland Security may not require any person or other entity to participate in a pilot program [of employment eligibility confirmation].” In designating E-Verify as the electronic employment eligibility verification system to be used by federal contractors under President Bush’s EO, the plaintiffs alleged that Chertoff had violated this statutory prohibition. The complaint contained several other allegations, including a claim that the Final Rule violated a separate IIRIRA statutory prohibition against re-verifying the work authorization status of existing employees. (Complaint, December 23, 2008).

In last week’s decision, Judge Alexander Williams, Jr. rejected the claims made by the coalition of special interest groups. Judge Williams noted that “[t]he decision to be a government contractor is voluntary and…no one has a right to be a government contractor.” Williams added that, even though the Final Rule requires federal contractors to enroll in E-Verify, “[p]otential government contractors have the option not to contract with the government,” so Secretary Chertoff hadn’t actually required anyone or any entity to use E-Verify. Judge Williams also went on to reject the coalition’s claims that the E-Verify contractor rule violated an IIRIRA prohibition against re-verifying the work authorization status of existing employees. According to Williams: “Nothing in IIRIRA explicitly prohibits the Executive Branch from using E-Verify for current employees.” (Decision, August 25, 2009).

The Obama Administration has indicated that it intends to implement the final rule on September 8, 2009 – after having delayed the regulation on three separate occasions. (See The Washington Post, January 30, 2009 and FAIR’s Legislative Updates from April 20, 2009; June 8, 2009 and July 13, 2009).However, the E-Verify program itself is set to expire on September 30, 2009. While many immigration reformers have been insisting that the program be permanently reauthorized, the Administration has avoided adopting such a position. Senator Jeff Sessions (R-AL) successfully attached a related E-Verify amendment to the Fiscal Year 2010 Homeland Security spending bill that would (1) permanently reauthorize E-Verify and (2) require all federal contractors to use E-Verify to check the work authorization status on all of their new hires, plus existing employees who are assigned to affected federal contracts. The fate of the Sessions Amendment is uncertain, however. The Homeland Security spending bill is scheduled to move to a House-Senate conference sometime in September. Since the House version of the bill does not contain the Sessions Amendment, the Conference Report – which would likely become law – may include or drop this language. (See FAIR’s Legislative Update, July 13, 2009).

Illegal Alien Faces Death Penalty for 2008 Murder of High School Football Star

The Los Angeles County District Attorney’s Office announced last week that it will seek the death penalty for Pedro Espinoza – an illegal alien member of the 18th Street Gang who allegedly murdered 17-year old high school football star Jamiel Shaw, Jr. in cold blood last year. (CBS News, August 27, 2009; KPCC, August 26, 2009; KTLA, August 26, 2009; and The New York Times, August 26, 2009). Shaw’s murder on March 2, 2008 touched off an explosive debate over Special Order 40 – the Los Angeles sanctuary ordinance which does not require police officers to check the immigration status of suspects who have been arrested. (See FAIR’s Legislative Update, April 14, 2008).

According to Los Angeles police, Shaw was about three blocks from his house, talking on his cell phone with his girlfriend on the night of his murder. Two men in a car pulled up to Shaw, jumped out, and asked Shaw if he belonged to a gang. When Shaw did not respond, Espinoza allegedly shot him to death. Shaw’s father, Jamiel, Sr., was on the phone when he heard the shots and raced outside to find his son lying on the sidewalk, bleeding. His mother, Army Sergeant Anita Shaw, was serving her second tour of duty in Iraq at the time Jamiel was killed. (The Los Angeles Times, March 4, 2008).

Following the murder, it came to light that the illegal alien who had allegedly killed Jamiel, Jr. had been released from jail on a firearms charge just one day before Shaw was killed. This prompted Shaw’s parents to file a wrongful death lawsuit against the Los Angeles Sheriff’s Department on the grounds that the illegal alien should have been turned over to federal authorities instead of being freed. (CBS News, August 27, 2009). Additionally, Shaw’s parents unsuccessfully petitioned for Jamiel’s Law, legislation that would have altered the sanctuary provisions in Special Order 40 by requiring authorities to check the immigration status of gang members who were under arrest or investigation. (KTLA, August 26, 2009). FAIR Media Director Ira Mehlman commented last week about the release of the illegal alien who has been charged with murdering Shaw: “The local police never took the trouble to find out he was an illegal alien and remand him to federal authorities. If they had done that, they would not have put him back out on the streets. He would have been remanded to federal custody and never had the opportunity to murder Jamiel Shaw.” (OneNewsNow, August 28, 2009).

Parents Jamiel, Sr. and Anita Shaw were proud of their son. Jamiel, Jr. aspired to play college football and wanted to become a sports agent after graduating college. Jamiel’s mother compared the gang violence that had led to her son’s death to the violence that she had seen in Iraq: “The only thing is we don’t have sand and dirt flying all around. But we have the bullets.” In the days following Jamiel’s murder, Jamiel, Sr. said of his son: “He was set. He was going to college…he was my hero.” (CBS News, August 27, 2009).